Rafael Rivera v. The State of Texas--Appeal from 229th Judicial District Court of Duval County

No. 04-99-00171-CR
Rafael RIVERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. 5,618
Honorable Ricardo H. Garcia, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 24, 2000

AFFIRMED

Rafael Rivera was convicted by a jury of delivery of over one gram but less than four grams of cocaine and was sentenced by the court to twenty years in prison. On appeal, he argues the trial court erred by refusing to give a limiting instruction after a witness gave an improper response to a question. We affirm.

Background

This prosecution arose out of a sting operation conducted by Xavier Villarreal, an agent with the Central South Texas Narcotic Task Force, on February 8, 1995. Rivera claimed he was entrapped by Villarreal. The State argued that evidence of subsequent drug transactions between Villarreal and Rivera was relevant to rebut Rivera's entrapment claim. At a hearing outside of the jury's presence, Villarreal testified that he had "other dealings" with Rivera after February 8, 1995. In particular, he engaged in a transaction with him in March 1995. While questioning Villarreal, Rivera's counsel noted that the indictment for the March transaction was dismissed. Rivera's counsel and the prosecutor debated whether evidence of subsequent transactions was admissible pursuant to Rules 403 and 404(b) of the Texas Rules of Criminal Evidence. The court sustained Rivera's objection to the evidence.

Later, when Rivera's counsel commenced his cross-examination of Villarreal, the following occurred:

Q. Isn't it true that ... you went looking for drugs to buy on the 8th of February?

A. On the 8th?

Q. On the 8th of February. The day that we're talking about today.

A. Is that the one that was dismissed?

Rivera's counsel objected and moved for a mistrial, which was denied. Counsel also asked for "a limiting instruction from the bench if possible." The court denied this request.(1)

Discussion

Rivera's issue presented is: "The trial court erred by not giving jury the defendant's requested midtrial limiting instruction after witness gave an improper response to cross-examination question, in violation of Rules 105(a), 403 and 404 of the Texas Rules of Criminal Evidence [and] Rule 38.05 [sic] of the Texas Code of Criminal Procedure."

Article 38.05 of the Texas Code of Criminal Procedure forbids a trial judge from commenting on the weight of evidence or conveying an opinion of the case to the jury. See Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). Rivera did not object on this basis at trial; therefore, the issue is not preserved for review. See Miranda v. State, 813 S.W.2d 724, 737 (Tex. App.-San Antonio 1991, pet. ref'd). In any event, the judge did not comment on the weight of the evidence or convey his opinion of the case merely by denying the requested instruction.

Rule 105(a) of the Texas Rules of Criminal Evidence provided that when evidence is admissible for one purpose and not admissible for another purpose, the court must restrict the evidence to its proper scope and instruct the jury accordingly if requested to do so. See Tex. R. Crim. Evid. 105(a) (now Tex. R. Evid. 105(a)). The party opposing the admission of evidence has the burden of requesting the correct limiting instruction. See Plante v. State, 692 S.W.2d 487, 493 (Tex. Crim. App. 1985). Here, Rivera merely requested "a limiting instruction," without further elaboration. Because the request was not sufficiently specific, it preserved nothing for review. See Puente v. State, 888 S.W.2d 521, 528 (Tex. App.-San Antonio 1994, no pet.).

Moreover, a limiting instruction would not have been appropriate in these circumstances. The court did not admit evidence regarding subsequent transactions for the limited purpose of rebutting Rivera's entrapment claim. Rather, the court sustained Rivera's objection to the evidence, rendering it inadmissible for all purposes.

Finally, we doubt the refusal of a limiting instruction was harmful. See Tex. R. App. P. 44.2(b); see also Mendiola v. State, 995 S.W.2d 175, 183 (Tex. App.-San Antonio 1999, pet. granted) (applying Rule 44.2(b) to the denial of a simultaneous limiting instruction). Villarreal's question, "Is that the one that was dismissed?" was the only evidence related to subsequent transactions and was not mentioned again during the trial. Instructing the jury that it could consider Villarreal's response only for the purpose of rebutting the entrapment claim might have confused the jury or called attention to the response.

The judgment of the trial court is affirmed.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. Counsel did not move to strike Villarreal's answer for being unresponsive or for violating the court's ruling on subsequent transactions, nor did counsel ask for an instruction to disregard the answer.